Published on 19 September 2022

FIFTH SECTION

Application no. 48646/13 Shevchenko and Others against Ukraine lodged on 15 July 2013 communicated on 21 February 2022

SUBJECT MATTER OF THE CASE

The application concerns the dispersal of a demonstration organised by the applicants and various issue stemming from it.

The applicants informed the Kyiv State Administration that they planned to hold a demonstration on the main square of Kyiv on 8 December 2012.

On 7 December 2012 the Kyiv District Administrative Court prohibited the applicants from holding the demonstration. On 28 March 2013 the court of appeal rejected the applicants’ appeal.

On 7 December 2012 Ms Shevchenko informed the Kyiv State Administration that the applicants would hold the demonstration, but in a different location.

On 8 December 2012 at 1 p.m. the applicants started their demonstration. They were holding banners saying “Stop lying, there is no propaganda of homosexuality”, “Homophobia is a shame for the State”, “Love against homophobia”. The police officers formed a circle around the applicants so that they were not visible for the public and the public was not able to join them.

Around 2.10 p.m. the applicants were attacked by members of far-right organisations. After this attack the police apprehended Mr Lysenko, Mr Movchan, Mr Karpus and Y.K. and brought them to a police station. The police charged Ms Shevchenko with violating the procedure for organising public events and the other applicants with failure to comply with orders of law enforcement officers and hooliganism.

While the police was checking the applicants’ identity papers they discovered that Y.K., who looked and identified himself as a male, was a female according to his identity papers. The police officers mocked Y.K. after this discovery.

On 10 December 2012 the Shevchenkivskyy District Court found Mr Movchan and Mr Karpus guilty of administrative offences. The Kyiv Court of Appeal quashed these decisions and closed the administrative proceedings against them holding that their actions did not constitute an administrative offence.

Nevertheless on 10 December 2012 Ms Shevchenko was found guilty of violating the procedure for organising public events by the Shevchenkivskyy District Court. On 18 January 2013 this decision was upheld on appeal and became final.

On 17 December 2012 the Shevchenkivskyy District Court closed the administrative proceedings against Mr Lysenko. This decision was not appealed against and became final.

On 18 December 2012 the Shevchenkivskyy Court found Y.K. guilty of hooliganism and violating public order on 8 December 2012. On 1 February 2013 this decision was upheld on appeal.

On 13 June 2013 Mr Lysenko, Mr Movchan and Mr Karpus instituted judicial proceedings challenging their detention at the police station on 8 December 2012.

The applicants complain that their rights under Articles 10 and 11 of the Convention were violated. All applicants except Ms Shevchenko complain under Article 14 in conjunction with Article 10 and 11 of the Convention that they were discriminated against because they demonstration concerned LGBT rights. All applicants except Ms Shevchenko also complain under Article 5 § 1 of the Convention that their detention at the police station was groundless because they had not committed any offence. Y.K. complains under Article 8 of the Convention that during the verification of his documents at the police station and during the court proceedings against him the gender identity indicated in his identity papers was disclosed to all those who were present during this events – police officers, judges, judges’ secretaries.

The applicants complain under Article 13 in conjunction with Article 11 that they could not appeal against the decision of 7 December 2012 before the planned date of the demonstration. All applicants except Ms Shevchenko complain under Article 13 that they did not have an effective domestic remedy against their complaint under Article 5 § 1. Y.K. complains that he did not have a domestic remedy for his complaint under Article 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants’ right to freedom of expression and to freedom of peaceful assembly, within the meaning of Articles 10 § 1 and 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Articles 10 § 2 and 11 § 2 of the Convention (see Lashmankin and Others v. Russia , nos. 57818/09 and 14 others, 7 February 2017)?

2. Have Mr Lysenko, Mr Movchan, Mr Karpus and Y.K. suffered discrimination on the ground that their demonstration concerned LGBT rights, contrary to Article 14 of the Convention, read in conjunction with Articles 10 and 11 of the Convention (see BÄ…czkowski and Others v. Poland , no. 1543/06, 3 May 2007)?

3. Were Mr Lysenko, Mr Movchan, Mr Karpus and Y.K. deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within paragraphs (a), (b), (c), (d), or (e) of this provision? If so, was their detention ordered “in accordance with a procedure prescribed by law” (see Vorontsov and Others v. Ukraine , nos. 58925/14 and 4 others, 21 January 2021)?

4. Has there been an interference with the right of Y.K. to respect for his private life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention (see, mutatis mutandis , Z v. Finland , 2 February 1997, Reports of Judgments and Decisions 1997-I)?

5. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 11, as required by Article 13 of the Convention (see BÄ…czkowski and Others v. Poland , no. 1543/06, 3 May 2007)?

6. Did Mr Lysenko, Mr Movchan, Mr Karpus and Y.K have at their disposal an effective domestic remedy for their complaints under Article 5 § 1, as required by Article 13 of the Convention (see Korban v. Ukraine , no. 26744/16, 4 July 2019)?

7. Did Y.K. have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention (see Panteleyenko v. Ukraine , no. 11901/02, 29 June 2006)?

List of applicants

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.Olena Olegivna SHEVCHENKO

1982Ukrainian

Kyiv

2.Bogdan Tarasovych KARPUS

1991Ukrainian

Kyiv

3.Y. K.

1989Ukrainian

Dnipro

4.Tymur Valeriyovych LYSENKO

1986Ukrainian

Kyiv

5.Sergiy Anatoliyovych MOVCHAN

1985Ukrainian

Kyiv